Archive for the 'Employment-Based Immigration' Category

Executive Action for Entrepreneurs- Almost A Startup Visa

There will be several measures for immigrant entrepreneurs and details will emerge soon.  However, this is a significant development – this is a new program using the parole authority.   Entrepreneurs will be allowed into the US under the ‘significant public benefit’ parole authority to the following types of people who would otherwise not qualify for national interest waiver:

1. inventors

2. researchers

3. founders of startups

who have raised funding from substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting­ edge research. This would be  a temporary way of allowing people to enter the US and pursue the research and development of their business.

There will be a precondition that they have threshold income or resources to financially maintain themselves so as not to become a public charge.

This is a great addition and will help some startups but it is not a visa.  Congress needs to act to create a new visa category for Startups.

More to come soon.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Immigration Executive Action for Businesses, Entrepreneurs and Students

The Department of Homeland Security released a series of memos.  I am copying links to the relevant ones for high-skilled immigration, entrepreneurs and students.

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf

My comments to follow soon.

 

 

Immigration Executive Action Fact Sheet

Executive Action List from the White House 

The White House

Office of the Press Secretary

FACT SHEET: IMMIGRATION ACCOUNTABILITY EXECUTIVE ACTION

The President’s Immigration Accountability Executive Actions will help secure the border, hold nearly 5 million undocumented immigrants accountable, and ensure that everyone plays by the same rules.  Acting within his legal authority, the President is taking an important step to fix our broken immigration system.

These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the U.S. without fear of deportation.

These are common sense steps, but only Congress can finish the job. As the President acts, he’ll continue to work with Congress on a comprehensive, bipartisan bill—like the one passed by the Senate more than a year ago—that can replace these actions and fix the whole system.

Three critical elements of the President’s executive actions are:

  • Cracking Down on Illegal Immigration at the Border:  The President’s actions increase the chances that anyone attempting to cross the border illegally will be caught and sent back. Continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
  • Deporting Felons, Not Families: The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crossers at the top of the deportation priority list.
  • Accountability – Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the US for more than five years and are parents of U.S. citizens or Lawful Permanent Residents.  By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.

The President’s actions will also streamline legal immigration to boost our economy and will promote naturalization for those who qualify.

For more than a half century, every president—Democratic or Republican—has used his legal authority to act on immigration.  President Obama is now taking another commonsense step. As the Administration implements these executive actions, Congress should finish the job by passing a bill like the bipartisan Senate bill that: continues to strengthen border security by adding 20,000 more Border Patrol agents; cracks down on companies who hire undocumented workers; creates an earned path to citizenship for undocumented immigrants who pay a fine and taxes, pass a background check, learn English and go to  the back of the line; and boosts our economy and keeps families together by cutting red tape to simplify our legal immigration process.

CRACKING DOWN ON ILLEGAL IMMIGRATION AT THE BORDER

Under the Obama Administration, the resources that the Department of Homeland Security (DHS) dedicates to security at the Southwest border are at an all-time high.  Today, there are 3,000 additional Border Patrol agents along the Southwest Border and our border fencing, unmanned aircraft surveillance systems, and ground surveillance systems have more than doubled since 2008. Taken as a whole, the additional boots on the ground, technology, and resources provided in the last six years represent the most serious and sustained effort to secure our border in our Nation’s history, cutting illegal border crossings  by more than half.

And this effort is producing results. From 1990 to 2007, the population of undocumented individuals in the United States grew from 3.5 million to 11 million people.  Since then, the size of the undocumented population has stopped growing for the first time in decades. Border apprehensions—a key indicator of border security— are at their lowest level since the 1970s.  This past summer, the President and the entire Administration responded to the influx of unaccompanied children with an aggressive, coordinated Federal response focused on heightened deterrence, enhanced enforcement, stronger foreign cooperation, and greater capacity for Federal agencies to ensure that our border remains secure.  As a result, the number of unaccompanied children attempting to cross the Southwest border has declined precipitously, and the Administration continues to focus its resources to prevent a similar situation from developing in the future.

To build on these efforts and to ensure that our limited enforcement resources are used effectively, the President has announced the following actions:

  • Shifting resources to the border and recent border crossers. Over the summer, DHS sent hundreds of Border Patrol agents and U.S. Immigration and Customs Enforcement (ICE) personnel to the Southwest border, and the Department of Justice (DOJ) reordered dockets in immigration courts to prioritize removal cases of recent border crossers.  This continued focus will help keep our borders safe and secure. In addition, Secretary Johnson is announcing a new Southern Border and Approaches Campaign Plan which will strengthen the efforts of the agencies who work to keep our border secure.  And by establishing clearer priorities for interior enforcement, DHS is increasing the likelihood that people attempting to cross the border illegally will be apprehended and sent back.
  • Streamlining the immigration court process. DOJ is announcing a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities. DOJ will also pursue regulations that adopt best practices for court systems to use limited court hearing time as efficiently as possible.
  • Protecting victims of crime and human trafficking as well as workers. The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations.  An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.
DEPORTING FELONS, NOT FAMILIES

By setting priorities and focusing its enforcement resources, the Obama Administration has already increased the removal of criminals by more than 80%.  These actions build on that strong record by:

  • Focusing on the removal of national security, border security, and public safety threats.  To better focus on the priorities that matter, Secretary Johnson is issuing a new DHS-wide memorandum that makes clear that the government’s enforcement activity should be focused on national security threats, serious criminals, and recent border crossers.  DHS will direct all of its enforcement resources at pursuing these highest priorities for removal.
  • Implementing a new Priority Enforcement Program. Effectively identifying and removing criminals in state and local jails is a critical goal but it must be done in a way that sustains the community’s trust. To address concerns from Governors, Mayors, law enforcement and community leaders which have undermined cooperation with DHS, Secretary Johnson is replacing the existing Secure Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses.  DHS will continue to rely on biometric data to verify individuals who are enforcement priorities, and they will also work with DOJ’s Bureau of Prisons to identify and remove federal criminals serving time as soon as possible.

ACCOUNTABILITY – CRIMINAL BACKGROUND CHECKS AND TAXES

Every Democratic and Republican president since Dwight Eisenhower has taken executive action on immigration.  Consistent with this long history, DHS will expand the existing Deferred Action for Childhood Arrivals (DACA) program to include more immigrants who came to the U.S. as children.  DHS will also create a new deferred action program for people who are parents of U.S. Citizens or Lawful Permanent Residents (LPRs) and have lived in the United States for five years or longer if they register, pass a background check and pay taxes.

The President is taking the following actions to hold accountable certain undocumented immigrants:

  • Creating a mechanism that requires certain undocumented immigrants to pass a background check to make sure that they start paying their fair share in taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than 5 years.  Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement. By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes.
  • Expanding DACA to cover additional DREAMers. Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born after 1981 and entered the country before June 15, 2007.  DHS is expanding DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today.  Going forward, DACA relief will also be granted for three years.

The President’s actions will also streamline legal immigration to boost our economy and promote naturalization by:

  • Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses.  Under the current system, employees with approved LPR applications often wait many years for their visa to become available.  DHS will make regulatory changes to allow these workers to move or change jobs more easily.  DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.
  • Enhancing options for foreign entrepreneurs.  DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.  The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.
  • Strengthening and extending on-the-job training for STEM graduates of U.S universities. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
  • Streamlining the process for foreign workers and their employers, while protecting American workers.DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
  • Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.
  • Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”).
  • Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement.
  • Creating a White House Task Force on New Americans. The President is creating a White House Task Force on New Americans to create a federal strategy on immigrant integration.
  • Promoting Citizenship Public Awareness: DHS will launch a comprehensive citizenship awareness media campaign in the 10 states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individuals.
  • Ensuring U.S. Citizens Can Serve: To further our military’s needs and support recruitment efforts, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense.

What to expect from the executive action annoucement

I have it on good authority that these are  some of the things we can expect:

Illegal immigration:

1. Deferred action to parents of US citizens and green card holders who have lived in the US for at least 5 years.

2. Expanding the DACA program to no-age limit and who have been in the US since January 1st 2010.

To be implemented in Spring 2015.

Legal immigration:

1. Expand student visa options.

2. A new program for entrepreneurs who have investment and created jobs.

3. Portability of employment-based work visas.

4. H4 EADs for those who have an approved green card application (don’t think they changed anything from the rules that were released earlier this year).

No recapture of unused visas that I was so hoping for.

I will update this list in due course.

 

Tahmina on CNN Money re. immigration executive action

Find Tahmina on CNN Money today discussing immigration executive action that will be announced tonight.  Here is a link to the story.

cnnmoney nov.20

Immigrant Entrepreneurs Must be Included in Immigration Executive Action

Not a day goes by in the US that an immigrant entrepreneur’s contributions are not making a deep  and lasting impact.  Watch the below video from the Partnership for a New American Economy to see how immigrant inventors’ inventions are used in your daily life.  At this unique juncture with imminent executive action announcements, where we have no hope of Congress passing immigration reform and thus a Startup Visa, we need entrepreneurs to be included in the executive action.  How can the President include them? Here are 4 ideas:

1. Eliminate the employer-employee Neufeld Memo that requires self-employed H1b applicants to show someone else controls their work.

2. Ease the interpretation of E-2 visas regarding ‘substantial investment’.  Startup founders do not have a lot of money but have rich minds and valuable intellectual property.

3. While TN visas are generally not allowed to have self-employment, the written law does not actually prevent it. Yet, any ownership interest will get a sure denial within seconds of presenting at the border. There needs to be guidance on this. Many Canadians could actually come to the US and start their companies if ownership interests are not treated as a death knell to the application.

4. Extend OPT periods so that students working on their startups have more time to develop their products, start and establish their businesses.  Self-employment is allowed in OPT and can be a great way for the President to keep the talent we are losing to the rest of the world.

December 2014 Visa Bulletin Out!

The December 2014 Visa Bulletin was out today.  Our usual commentary to follow soon. Stay tuned!

Visa Guru Charlie Oppenheim Agrees There Are Unused Visas

As many of my readers will know, over the summer there was much discussion about whether there were unused visas and whethey they could be recaptured.  Various newspapers had reported about 200,000 visas remain unused. The recaputuring of those visas would reduce the severe visa backlog.  Here is my article: Unused Visas- To Recapture or Not to Recapture, That Is The Question”

As a result, through AILA, I asked Charlie Oppenheim to confirm whether there were indeed unused visas.  Here is what he said (see below): Copied from AILA.  I want to extend a huge thank you to Mr. Oppenheim on behalf of myself and my readers for taking the time to read my questions, and to AILA for taking my questions to him.

________________________________

Member Question Regarding Unused Visa Numbers
An AILA member posed a series of questions following news reports of an estimated 200,000 unused visas which could be recaptured through administrative action.

Charlie agrees that there are approximately 220,000 family and employment-based visas that have gone unused, most of which can be attributed to the period between 1992 and 1997. Prior to the “dot com bubble,” demand was usually insufficient to use all of the available employment-based visa numbers in any given fiscal year. Since then, the increase in demand for labor in the IT sector and improved interagency processes have contributed to greater use of employment-based visa numbers in the fiscal year for which they were allocated. In the past, such unused numbers have only been recaptured through legislative action.

_________________________________

Now that we have confirmation that there are 220,000 visas to recapture, what can be done about it? Would legislation be necessary to recapture? The law does not specifically discuss roll-overs in these categories (see my chart in the previous article).  I would ask the Administration to look at reinterpreting the law.  The law already allows for the recapturing of unused visas.  Recapturing those would significantly reduce the visa backlog which would in turn help American businesses hire skilled-immigrants as well as would-be entrepreneurs who are otherwise stuck ‘in the line’ preventing them from starting their own companies and creating jobs.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

October 2014 Visa Bulletin Commentary

The October 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico:  F2A category advances a month taking the priority date to 1 February 2013; F2B preference advances 2 months with PD at 1 November 2007;  F4 category advances 21 days taking PD to 22 January 2002;  EB2 is current and, and EB3 advances a huge 6 months to PD at 1 October 2011.

For India only: F2A category advances a month taking the priority date to 1 February 2013; F2B preference advances 2 months with PD at 1 November 2007;  F4 category advances 21 days taking PD to 22 January 2002;  EB2 India sees no movement leaving PD at 1 May 2009 and EB3 sees 7 days advancement taking priority date to 15 November 2003.

EB5 Note: There was much discussion in news reports about the unavailability of EB5 visas for citizens of China.  The October 2014 visa bulletin shows visas are now current and there should not be any waiting time.  The visa bulletin does not mention any warning issues for visa retrogression anytime soon but it is something that we will start monitoring to inform you.

If you are eligible to file,  it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until October 1st and can file while the priority date remains current for you.  Good luck to those who can file!

We will report on the November 2014 visa bulletin when it is released. See below for future cut off dates information:

News re. upcoming visa availability:

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: Increased demand will require the retrogression of this cut-off date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

Unused Visas: To Recapture or Not to Recapture- That Is The Question

Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this. 

http://discuss.ilw.com/content.php?3445-Article-Unused-Visas-To-Recapture-or-Not-to-Recapture-That-Is-The-Question-By-Tahmina-Watson

To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.

First draft to understand where visas are not being used and need recapturing

First draft to understand where visas are not being used and need recapturing

______________________________________________________________________________________________

(The below article needs to be updated and will be updated soon). 

The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

The law already allows the use of unused visa. So what is all the fuss about?

Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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